HB4875sam002 103RD GENERAL ASSEMBLY

Sen. Mary Edly-Allen

Filed: 5/3/2024

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 4875

2    AMENDMENT NO. ______. Amend House Bill 4875 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Right of Publicity Act is amended by
5changing Sections 5, 20, 30, and 35 as follows:
 
6    (765 ILCS 1075/5)
7    Sec. 5. Definitions. As used in this Act:
8    "Artificial intelligence" means a machine-based system
9that, for explicit or implicit objectives, infers, from the
10input it receives, how to generate outputs such as
11predictions, content, recommendations, or decisions that can
12influence physical or virtual environments. "Artificial
13intelligence" includes generative artificial intelligence.
14    "Commercial purpose" means the public use or holding out
15of an individual's identity (i) on or in connection with the
16offering for sale or sale of a product, merchandise, goods, or

 

 

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1services; (ii) for purposes of advertising or promoting
2products, merchandise, goods, or services; or (iii) for the
3purpose of fundraising.
4    "Digital replica" means a newly created, electronic
5representation of the voice, image, or likeness of an actual
6individual created using a computer, algorithm, software,
7tool, artificial intelligence, or other technology that is
8fixed in a sound recording or audiovisual work in which that
9individual did not actually perform or appear, and which a
10reasonable person would believe is the individual's voice,
11image, or likeness being imitated.
12    "Generative artificial intelligence" means an automated
13computing system that, when prompted with human prompts,
14descriptions, or queries, can produce outputs that simulate
15human-produced content, including, but not limited to, the
16following:
17        (1) textual outputs, such as short answers, essays,
18    poetry, or longer compositions or answers;
19        (2) image outputs, such as fine art, photographs,
20    conceptual art, diagrams, and other images;
21        (3) multimedia outputs, such as audio or video in the
22    form of compositions, songs, or short-form or long-form
23    audio or video; and
24        (4) other content that would be otherwise produced by
25    human means.
26    "Identity" means any attribute of an individual that

 

 

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1serves to identify that individual to an ordinary, reasonable
2viewer or listener, including but not limited to: (i) name,
3(ii) signature, (iii) photograph, (iv) image, (v) likeness, or
4(vi) voice.
5    "Individual" means a living or deceased natural person,
6regardless of whether the identity of that individual has been
7used for a commercial purpose during the individual's
8lifetime.
9    "Juristic person" means a partnership, trust, estate,
10corporation, unincorporated association, or other organization
11capable of suing and being sued in a court of law.
12    "Name" means the actual name or other name by which an
13individual is known that is intended to identify that
14individual.
15    "Person" means a natural or juristic person. A service
16provider shall only constitute a person under subsections (b)
17and (d) of Section 30 of this Act if the service provider
18created the unauthorized digital replica.
19    "Service provider" means any entity offering broadband
20service as that term is used in Section 10 of the Broadband
21Advisory Council Act, a wireless carrier as defined by 47
22U.S.C. 615b(4), or a telecommunication carrier as that term is
23used in Section 13-202 of the Public Utilities Act.
24    "Work of Fine Art" means (i) a visual rendition including,
25but not limited to, a painting, drawing, sculpture, mosaic,
26videotape, or photograph; (ii) a work of calligraphy; (iii) a

 

 

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1work of graphic art including, but not limited to, an etching,
2lithograph, serigraph, or offset print; (iv) a craft work in
3materials including, but not limited to, clay, textile, fiber,
4wood, metal, plastic, or glass; or (v) a work in mixed media
5including, but not limited to, a collage, assemblage, or work
6consisting of any combination of items (i) through (iv).
7(Source: P.A. 90-747, eff. 1-1-99.)
 
8    (765 ILCS 1075/20)
9    Sec. 20. Enforcement of rights and remedies.
10    (a) The rights and remedies set forth in this Act may be
11exercised and enforced by:
12        (1) an individual or his or her authorized
13    representative;
14        (2) a person to whom the recognized rights have been
15    transferred by written transfer under Section 15 of this
16    Act; or
17        (3) after the death of an individual who has not
18    transferred the recognized rights by written transfer
19    under this Act, any person or persons who possesses an
20    interest in those rights.
21    (a-5) In addition to the enforcement of rights and
22remedies in subsection (a), the rights and remedies set forth
23in this Act may, in the case of an individual who is a
24recording artist, be enforced by:
25        (1) the individual who is the recording artist; or

 

 

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1        (2) a person who has entered into a contract for the
2    individual's exclusive personal services as a recording
3    artist or who has entered into a contract for an exclusive
4    license to distribute sound recordings that capture the
5    recording artist's audio performances.
6    (b) Each person described in paragraph (3) of subsection
7(a) shall make a proportional accounting to, and shall act at
8all times in good faith with respect to, any other person in
9whom the rights being enforced have vested.
10(Source: P.A. 90-747, eff. 1-1-99.)
 
11    (765 ILCS 1075/30)
12    Sec. 30. Limitations regarding use of an individual's
13identity.
14    (a) A person may not use an individual's identity for
15commercial purposes during the individual's lifetime without
16having obtained previous written consent from the appropriate
17person or persons specified in Section 20 of this Act or their
18authorized representative.
19    (b) A person may not distribute, transmit, or make
20available to the general public a sound recording or
21audiovisual work that contains a digital replica of an
22individual with actual knowledge that use of the digital
23replica was not authorized by the individual.
24    (c) If an individual's death occurs after the effective
25date of this Act, a person may not use that individual's

 

 

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1identity or digital replica in violation of this Act for
2commercial purposes for 50 years after the date of the
3individual's death without having obtained previous written
4consent from the appropriate person or persons specified in
5Section 20 of this Act.
6    (d) Any person who materially contributes to, induces, or
7otherwise facilitates a violation of subsection (b) of this
8Section by another person after having obtained actual
9knowledge that the other person is infringing upon an
10individual's rights under this Section may be found liable for
11the violation. This subsection (d) includes distributing,
12transmitting, or otherwise making available to the general
13public an algorithm, software, tool, or other technology
14service or device the primary purpose or function of which is
15to produce the identity of particular, identified individuals
16with actual knowledge that distributing, transmitting, or
17otherwise making available to the general public that identity
18was not authorized by the individual.
19    (e) Subsection (d) does not apply to a person that solely
20transmits or stores data or software, including interactive
21entertainment software, with respect to any unauthorized
22digital replica stored or transmitted at the direction of a
23user of material that resides on a system or network, if the
24person:
25        (1) does not have actual knowledge that the material
26    or an activity using the material on the system or network

 

 

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1    is unauthorized;
2        (2) in the absence of such actual knowledge, is not
3    aware of facts or circumstances from which unauthorized
4    activity is apparent; or
5        (3) upon obtaining actual knowledge, apparent
6    knowledge, or written notification of claimed unauthorized
7    activity, acts expeditiously to remove, or disable access
8    to, the material that is the subject of infringing
9    activity. As used in this subsection, "expeditiously" has
10    the same meaning as it does in 17 U.S.C. 512.
11    (f) Subject to the limitations in subsection (e), all of
12the elements of 17 U.S.C. 512 shall be incorporated mutatis
13mutandis with respect to claims relating to unauthorized
14digital replicas. This exemption shall apply without regard to
15whether the unauthorized version infringes copyright.
16    (g) Nothing in this Act may be construed in a manner
17inconsistent with 47 U.S.C. 230 or any other federal law.
18(Source: P.A. 90-747, eff. 1-1-99.)
 
19    (765 ILCS 1075/35)
20    Sec. 35. Applicability.
21    (a) This Act applies to acts or events that take place
22after the effective date of this Act.
23    (b) Subsections (a) and (c) of Section 30 of this This Act
24do does not apply to the following:
25        (1) use of an individual's identity in an attempt to

 

 

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1    portray, describe, or impersonate that individual in a
2    live performance, a single and original work of fine art,
3    play, book, article, musical work, film, radio,
4    television, or other audio, visual, or audio-visual work,
5    provided that the performance, work, play, book, article,
6    or film does not constitute in and of itself a commercial
7    advertisement for a product, merchandise, goods, or
8    services;
9        (2) use of an individual's identity for non-commercial
10    purposes, including any news, public affairs, or sports
11    broadcast or account, or any political campaign;
12        (3) use of an individual's name in truthfully
13    identifying the person as the author of a particular work
14    or program or the performer in a particular performance;
15        (4) promotional materials, advertisements, or
16    commercial announcements for a use described under
17    paragraph (1), (2), or (3) of this subsection; or
18        (5) use of photographs, videotapes, and images by a
19    person, firm, or corporation practicing the profession of
20    photography ("professional photographer") to exhibit in or
21    about the professional photographer's place of business or
22    portfolio, specimens of the professional photographer's
23    work, unless the exhibition is continued by the
24    professional photographer after written notice objecting
25    to the exhibition has been given by the individual
26    portrayed.

 

 

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1    (c) Subsections (b) and (c) of Section 30 of this Act do
2not apply to the use of identity or digital replicas in the
3following:
4        (1) news, public affairs, or a sports broadcast or
5    account, or any political campaign;
6        (2) for a purpose that has political, public interest,
7    educational, or newsworthy value, unless use of the
8    audiovisual digital replica is intended to create, and
9    does create, the false impression that the work is an
10    authentic recording in which the individual participated;
11        (3) use of a digital replica to depict the individual
12    in a documentary, docudrama, or historical or biographical
13    audiovisual work, or any other representation of the
14    individual as such individual, regardless of the degree of
15    fictionalization, unless the use of the audiovisual
16    digital replica creates the false impression to a
17    reasonable viewer or listener that the digital replica is
18    an authentic recording or that the individual participated
19    in the work, including, for example, in a live performance
20    of a musical work an individual did not participate in;
21        (4) use of digital replica for the purposes of
22    comment, criticism, scholarship, satire, or parody; or
23        (5) promotional materials, advertisements, or
24    commercial announcements for a use described in paragraphs
25    (1), (2), (3), and (4) of this subsection.
26    (d) The provisions of this amendatory Act of the 103rd

 

 

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1General Assembly do not apply to any action filed before, nor
2to any action pending on, its effective date.
3(Source: P.A. 90-747, eff. 1-1-99.)".